Heller

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KAYLA HELLER,

Plaintiff,

v. Case 26-cv-00709

Judge Franklin U. Valderrama

CITY OF MARKHAM AND

JACK GENIUS,

Defendants.

ORDER

Plaintiff Kayla Heller (Heller) was a patrol officer for the City of Markham (the

City) and Jack Genius (Genius) was the Chief of Police for the City. Heller claims

that she was fired in retaliation for a complaint she made about Genius engaging in

unlawful conduct. So, Heller sued the City and Genius (collectively Defendants)

asserting a claim under the Illinois Whistleblower Act, Section 740 ILCS 174/1 et.

seq., (Count I); a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count

II), a claim under the Illinois Wage Payment and Collection Act, Section 820 ICLS

115/1 et. seq (Count III) and an indemnification claim against the City (Count IV). R.

1. Complaint.1 Before the Court is Defendants’ Motion to Dismiss Counts I – III of

the Complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). R. 2. For the reasons that follow, Defendants’ motion is denied.

1 Citations to the docket are indicated by “R.” followed by the docket number and, where necessary, a

page or paragraph citation.

Background2

In December 2024 Heller began working as a probationary police officer for the

City with the rank of patrol officer. Compl. ¶ 13. Her probationary period was 12

months, as specified in the Collective Bargaining Agreement between the City and

the Illinois Council of Police. Id. at ¶ 14. Heller claims she performed the duties of a

patrol officer well above her employer’s expectations and her performance reviews

were excellent during the probationary period. Id. at ¶ 15.

In October 2025 Heller was on routine patrol when she ran the license plate of

a car and learned that the car’s registration was suspended for a mandatory

insurance violation. Id. at ¶ 16. Heller initiated a traffic stop and the driver of the car

identified himself as Tyrone Muhammad (Muhammad). Id. at ¶¶ 16–17. Muhammad

is a candidate to replace retiring United States Senator Dick Durbin, which becomes

relevant below. Id. at ¶ 17. When Muhammad was unable to provide proof of

insurance, Heller asked Muhammad to step out of the car and called a tow truck to

impound it. Id. at ¶¶ 18–19.

While waiting for the tow truck, Heller conducted an inventory search of the

car and found a loaded Smith & Wesson pistol in the center console. Id. at ¶ 20. After

checking with dispatch, Heller learned Muhammad did not have an Illinois State

Police-issued Concealed Carry License or a Firearm Owners Identification card. Id.

at ¶ 20. In Illinois, it is a felony-level offense to carry an uncased, loaded, accessible

firearm in public or in a vehicle if the individual does not have a Concealed Carry

2 The Court accepts as true all well-pleaded facts in the complaint and draws all reasonable

inferences in favor of Heller. See Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).

License or a Firearm Owners Identification card. Id. at ¶ 21. Heller informed

Muhammad she was placing him under arrest for Aggravated Unlawful Possession

of a Weapon. Id. at ¶ 23. Throughout the stop and arrest, Muhammad was on the

phone with Tracy Bey, the Operations Director of Ex Cons for Community and Social

Change and a candidate for 4th Ward Alderperson in Chicago. Id. at ¶¶ 19, 22, 28.

Heller took Muhammad to the City police station. Id. at ¶ 24. Soon after arrival,

Heller received a phone call from Genius ordering that she release Muhammad

without charging him with Aggravated Unlawful Possession of a Weapon and that

Muhammad’s car be released from the impound lot without assessing fees. Id. at ¶ 25.

Muhammad was released immediately and Heller wrote a ticket for driving with

suspended registration for a mandatory insurance violation. Id. at ¶ 26. She did not

charge Muhammad with Aggravated Unlawful Possession of a Weapon. Id. at ¶ 25.

The next evening, two SUVs with government-issued license plates escorted

Muhammad’s car from the impound lot. Id. at ¶ 29.

The morning after Muhammad’s arrest and release, Heller made a

whistleblower complaint to the Cook County State’s Attorney and Illinois State Police

alleging Genius engaged in unlawful conduct related to ordering Muhammad’s

release without charges. Id. at ¶ 27. After Genius learned about Heller’s complaint,

he opened a disciplinary investigation into her conduct. Id. at ¶ 30.

At a disciplinary hearing in November 2025, Heller alleges she was read her

Garrity Rights and questioned at length about the whistleblower complaint. Id. at

¶ 34. Heller alleges that she was not asked about violations of law or police procedure

at that time. Id. at ¶ 34. A transcript of the interrogation was never made available

to her. Id. at ¶ 33.

Heller alleges that in December 2025, Genius called her to his office and asked

her if she was planning to resign in lieu of termination. Id. at ¶ 40. Heller refused to

resign, and Genius terminated her effective immediately. Id. at ¶¶ 41–43.

Heller sued Defendants asserting claims under the Illinois Whistleblower Act

(740 ILCS 174/15(b)) (Count I); First Amendment retaliation pursuant to 42 U.S.C.

§ 1983 (Count II); violation of the Illinois Wage Payment and Collection Act, Section

820 ICLS 115/1 et. seq. (Count III) and indemnification (Count IV). Defendants move

to dismiss Counts I – III of the complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). The fully-briefed motion is before the Court.

Legal Standard

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the sufficiency of

the complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d

811, 820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain

factual allegations, accepted as true, sufficient to “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The allegations “must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are

entitled to the assumption of truth are those that are factual, rather than mere legal

conclusions. Iqbal, 556 U.S. at 678–79.

Analysis

Defendants, in their motion, attach the Collective Bargaining Agreement

(CBA) between the City and the Illinois Council of Police (Exhibit B). According to

Defendants, the Court can consider this document in its analysis because it is

referenced in the complaint. Mot. Dismiss at 1–2. Notably, Heller does not address

the CBA and whether the Court can consider it in resolving this motion.

Generally, a court “cannot consider evidence outside the pleadings to decide a

motion to dismiss without converting it into a motion for summary judgment.”

Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018). There are exceptions to this

general rule, however. One such exception is the doctrine of incorporation by

reference. Under this doctrine, a court may consider extraneous materials on a

motion to dismiss “if they are referred to in the plaintiff’s complaint and are central

to [the] claim.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th

Cir. 2012) (cleaned up).3 Here, Heller does not attach the CBA as an exhibit. But she

does reference the CBA at various points in the complaint, and indeed, in her Illinois

Wage Payment and Collection Act (IWPCA) count, she relies on specific sections of

3This Order uses (cleaned up) to indicate that internal quotation marks, alterations, and citations

have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 18 Journal of

Appellate Practice and Process 143 (2017).

the CBA as a basis for her claim. See Compl. ¶¶ 14, 71–76. The Court thus agrees

with Defendants and finds that Heller’s complaint references the CBA and that it is

central to her IWPCA claim. Therefore, the Court may consider the CBA without

converting the motion to dismiss into a motion for summary judgement. The Court

now turns to the substance of the parties’ arguments.

Defendants move to dismiss Counts I – III of the complaint for failure to state a

claim. The Court addresses the arguments as presented in Defendants’ motion to

dismiss.

I. Count II – First Amendment Retaliation Claim

In Count II, Heller alleges that she engaged in protected speech when she

made a whistleblower complaint to the Cook County State’s Attorney and the Illinois

State Police raising concerns about Genius engaging in illegal conduct relating to

Muhammad’s release. See generally Compl. ¶¶ 62–70. She contends that Defendants

terminated her due to the content of this speech, in violation of her First Amendment

right to free speech. Id. Defendants argue that Heller’s First Amendment retaliation

claim should be dismissed because when Heller made the complaint, she was acting

in her official capacity as a government employee and not as a private citizen, thus

the speech at issue was not constitutionally protected.

Citizens do not surrender their First Amendment protections by virtue of

accepting public employment. Lane v. Franks, 573 U.S. 228, 231 2014). As the

Seventh Circuit has explained, “[p]ublic employees do not sign away their free speech

rights when answering the call to public service; at the same time, public employees’

rights to free speech are not absolute.” Hicks v. Ill. Dep’t of Corr., 109 F.4th 895, 900

(7th Cir. 2024). The First Amendment “protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.

Ceballos, 547 U.S. 410, 417 (2006). But “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016)

(quoting Garcetti, 547 U.S. at 421). “Determining the official duties of a public

employee requires a practical inquiry into what duties the employee is expected to

perform, and is not limited to the formal job description.” Carter v. Ill. Gaming Bd.,

2020 WL 1639914, at *3 (N.D. Ill. Apr. 2, 2020).

To state a First Amendment retaliation claim, a public employee must allege

that she (1) engaged in activity protected by the First Amendment; (2) suffered a

deprivation that would likely deter First Amendment activity in the future; and (3)

the speech was at least a motivating factor in the adverse employment action. See

Novoselsky v. Brown, 822 F.3d 342, 354 (7th Cir. 2016). Here, Defendants challenge

only the first requirement by arguing that Heller did not engage in protected activity.

See generally Mot. Dismiss at 5–8.

As a public employee, Heller’s speech is protected by the First Amendment only

if: “(1) [s]he made the speech as a private citizen, (2) the speech addressed a matter

of public concern, and (3) [her] interest in expressing that speech was not outweighed

by the state’s interests as an employer in promoting effective and efficient public

service.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (cleaned up).

Defendants first argue that Heller’s First Amendment retaliation claim fails

because her complaints to the Cook County State’s Attorney and Illinois State Police

were made in her capacity as a public employee speaking pursuant to official duties,

not as a private citizen. Mot. Dismiss at 6 (citing Garcetti, 547 U.S. at 421). Because

her suspicions of misconduct were gathered through the course of her responsibilities

as the arresting officer, Defendants argue, Heller’s complaint owed its existence to

her official duties. Mot. Dismiss at 7 (citing Abcarian v. McDonald, 931, 937 F.3d 931

(7th Cir. 2010)). While Defendants concede that Heller had no formal reporting

responsibility to either Cook County State’s Attorney or the Illinois State Police, the

way they see it, because her complaint was related to her work responsibilities, her

complaint was thus pursuant to her official responsibilities. Mot. Dismiss at 8 (citing

Ulrey v. Reichhart, 941 F.3d 255, 259–60 (7th Cir. 2019); McArdle v. Peoria School

Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013)).

In response, Heller maintains that she has adequately pled a First Amendment

retaliation claim. Resp. at 10. Conceding that public employees do not speak as

citizens for First Amendment purposes when making statements pursuant to their

official duties, Heller insists that her reporting fell outside of her official duties and

is therefore constitutionally protected activity. Resp. at 6. From Heller’s perspective,

her complaint fell outside the scope of her official duties because “[a]n employee is

not speaking pursuant to [her] official duties when [s]he reports misconduct outside

established channels’ or reports something for which [s]he did not have any formal

responsibilities.” Resp. at 9 (citing Logan v. City of Chicago, 2018 WL 5279304 at *10

(N.D. Ill. Oct. 24, 2018)). Heller concludes that she spoke as a private citizen because

her complaint alleged political favoritism and corruption, which her official duties did

not require her to investigate, and she directed her complaint to outside agencies.

Resp. at 6 (citing Kristofek, 832 F.3d at 793; Logan 2018 WL 5279304 at *10). The

Court agrees with Heller.

Recall, that if a “public employee reports official misconduct in the manner

directed by official policy, to a supervisor or an external body with formal oversight

responsibility, then the employee speaks pursuant to her official duties, and her

speech is unprotected by the First Amendment.” Carter v. Ill. Gaming Bd., 2020 WL

1639914, at *3 (N.D. Ill. Apr. 2, 2020) (collecting cases). But if an employee “reports

misconduct outside official channels or in violation of official policy, she speaks as a

private citizen and her speech may be constitutionally protected.” Id. Here, there is

no allegation that Heller reported the alleged misconduct in a manner directed by

official policy. Nor is there any allegation that Heller made the report to an external

body with formal oversight over the City. So, Heller plausibly alleges that her

complaint falls into the latter category, which would entitle her speech to

constitutional protection.

Defendants’ remaining argument, that Heller regularly interacted with the

agencies she reported to and that she failed to cite a specific law she believed Genius

broke, fares no better. Defendants do not explain why Heller’s presumed regular

interaction with the Cook County State’s Attorney’s Office or the Illinois State Police

would bring her complaint within the scope of her official duties. Neither do

Defendants offer any rationale in support of their argument that Heller needed to

articulate how Genius’s conduct was unlawful for her claim to survive a First

Amendment protection inquiry. Indeed, Defendants do not point the Court to any

persuasive authority in support of either argument. Therefore, viewing the facts in

the light most favorable to Heller, as the Court must at this juncture, the Court finds

that Heller has plausibly pled a First Amendment retaliation claim.

II. Count I – Illinois Whistleblower Act Retaliation Claim

In Count I, Heller alleges that Defendants violated the Illinois Whistleblower

Act (IWA) when they subjected her to unlawful retaliation following her reporting of

Genius’s order to release Muhammad. Compl. ¶¶ 53–61.

The IWA bars employers from retaliating against employees who, among other

things, alert government investigators to employer wrongdoing where they have a

good faith basis to believe wrongdoing has occurred. See generally 740 ILCS 174/15.

To adequately plead a violation of the IWA, a plaintiff must allege “(1) an adverse

employment action by his or her employer, (2) which was in retaliation (3) for the

employee’s disclosure to a government or law enforcement agency (4) of a suspected

violation of an Illinois or federal law, rule, or regulation.” Cwik v. Manteno Cmty. Fire

Port. Dist., 2024 WL 394614, at *5 (Ill. App. Ct. 2024).

Defendants argue that Heller’s IWA claim should be dismissed as a matter of

law because she fails to allege a specific law, rule, or regulation that Genius broke

(citing Sweeney v. City of Decatur, 2017 WL 1101773, at *3 (Ill. App. Ct. 2017)). Mot.

Dismiss at 9. Defendants contend that because Heller did not state a specific law,

rule, or regulation she believed Genius had violated, she fails to state a claim. Further,

Defendants cite the Illinois Tort Immunity Act, arguing that Genius exercised legal

discretion in choosing not to charge Muhammad, so he is immunized from liability

under the Act. Mot. Dismiss at 9 (citing 745 ILCS 10/2-202).

Heller counters that her complaint pertained to unlawful political corruption,

not a discretionary act. Resp. at 11. Heller maintains that her concern was the

motivation behind the release, rather than the release itself. Resp. at 11 (citing

Martorana v. Village of Elmwood Park, 2013 WL 1686869 (N.D. Ill. Apr. 18, 2013);

Bello v. Vill. of Skokie, 2014 WL 4344391 at *23 (N.D. Ill. Sep. 2, 2014)). Moreover,

Heller asserts that her report was based on a good faith belief that Genius’s conduct

was unlawful. Resp. at 11–12. As for Defendants’ argument for dismissal under the

Illinois Tort Immunity Act, according to Heller, that argument is unsupported and

should be stricken. Resp. at 12.

The Court finds, contrary to Defendants’ argument, that Heller is not required

to allege a specific law, rule, or violation she believed was violated to state a claim

under the IWA. The IWA provides, in relevant part, that to state a claim, an employee

must show she was retaliated against for reporting “a suspected violation of an Illinois

or federal law, rule, or regulation.” (Sweeney, 2017 WL 1101773 at *3) (emphasis

added). Defendants’ interpretation reads “suspected” out of the IWA. Heller was not

required to specify a particular law she believed Genius broke; mere reasonable

suspicion is sufficient to satisfy her burden at the pleading stage. Moreover,

Defendants ignore the context provided by the sentence preceding the rule they cite

from Sweeney: “An employer may not retaliate against an employee for disclosing

information to a government or law enforcement agency, where the employee has

reasonable cause to believe that the information discloses a violation of a State or

federal law, rule, or regulation.” Id. (emphasis added). To this point, Heller directly

states she had a reasonable belief that unlawful conduct had occurred when she made

her report. Compl. ¶ 59. Since Heller claims she had reasonable cause to believe that

Genius's order to release Muhammad was unlawful (and the Court accepts her well-

pleaded facts as true and construes reasonable inferences in her favor), she plausibly

alleges a suspected violation of an Illinois or federal law, rule, or regulation.

III. Count III – Illinois Wage Payment and Collection Act Claim

In Count III, Heller alleges that Defendants violated the Illinois Wage

Payment and Collection Act (IWPCA) by failing to pay her final wages. ¶¶ 71–76.

Heller claims that the City refused to reimburse her for 80 hours of accrued vacation

time and 23.33 accrued but unused sick days under the CBA, which are considered

final compensation pursuant to the IWPCA. Id.

The IWPCA protects separated employees by requiring employers to pay final

compensation, including paid vacation time if provided by the employer, by the

employee’s next regularly scheduled payday after separation. See generally 820 ILCS

115/5. To state a claim under the IWPCA, a person “must plead that wages or final

compensation is due to him or her as an employee from an employer under an

employment contract or agreement.” Landers-Scelfo v. Corporate Office Systems, 827

N.E.2d 1051, 1058 (Ill. App. Ct. 2005), citing 820 ILCS 115/2. The IWPCA also

provides, in relevant part, that “unless provided for by a collective bargaining

agreement,” an employee should be paid the “equivalent of all earned vacation. . . as

part of her final compensation.” 820 ILCS 115/5. At issue here is whether Heller has

plausibly alleged facts sufficient to show the City owes final compensation for accrued

vacation time and accrued but unused sick leave under the CBA.

Defendants move to dismiss Heller’s claim, arguing that the CBA precludes

any claim for benefits. From Defendants’ point of view, the CBA specifies that

vacation benefits only vest after the completion of the probationary period. Mot.

Dismiss at 10. Since Heller was terminated before completing the probationary period,

Defendants reason that her vacation benefits never vested, so the City does not owe

her final compensation pursuant to the IWPCA. Id. Defendants insist that Heller is

“not entitled to any recourse or grievance procedure of benefits pursuant to the CBA”

due to Heller’s failure to complete the probationary period. Id.

Whether or not Heller is entitled to accrued vacation and unused sick days

under the CBA is a factual inquiry appropriately determined at summary judgment.

See Kalechstein v. Abbassian, 2015 WL 13877482, at *2 (N.D. Ill. Dec. 3, 2015). Indeed,

Defendants’ motion does not argue that Heller has not plausibly alleged sufficient

facts on this claim, only that under their interpretation of the CBA, she is not entitled

to pay. Viewing the evidence in the light most favorable to plaintiff, Heller plausibly

alleges she had earned vacation allowance and unused sick days at the time of her

termination that went unpaid. Therefore, the Court denies the motion to dismiss on

this front.

Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss R. [12] is denied.

DATED: July 7, 2026 Lie her 7 of ——

United States District Judge

Franklin U. Valderrama

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